Mutual Sav. Life Ins. Co. v. Alsup , 224 Ala. 111 ( 1931 )

Our attention has been called to an excerpt from the answer of this plaintiff made in another case before this policy was issued and which was introduced as evidence in this case that the insured was afflicted with tuberculosis, unable to support himself, and that she went into his home and cared for and nursed him. This, of course, created a conflict with the quoted evidence of the physician, and we were in error in holding that the plaintiff was entitled to affirmative instructions on this issue and which makes it necessary for us to consider other questions pretermitted upon the original consideration of this cause.

The trial court erred in giving, at the request of the plaintiff, the charge which we mark 2 on page 40 of the record. It confines, as a defense, the fraud of the insured alone when there was proof that the plaintiff, the beneficiary, procured the policy and paid the premiums with the knowledge that the insured had tuberculosis when the insurance was procured.

The trial court could have well refused the plaintiff's charge 1, as there was no proof that the agent or agents of the defendant who collected or received the premiums had any knowledge that the insured had tuberculosis when the policy was issued. As to whether there was reversible error in giving same we are at some disadvantage in determining, as the policy contract refers to the application as a part of the transaction and which we do not find in the record. The mere fact, however, that an agent has authority to solicit insurance and collect the premiums does not without more give him authority to waive conditions of forfeiture as for fraud and misrepresentations in the procurement of the policy. Queen Insurance Co. v. Young,86 Ala. 424, 5 So. 116, 11 Am. St. Rep. 51; North Carolina Mut. Life Ins. Co. v. Kerley, 215 Ala. 100, 109 So. 755.

The motion for rehearing is granted, the judgment of affirmance is set aside, and the cause is reversed and remanded.

THOMAS, BROWN, and FOSTER, JJ., concur.